from the come-on dept

We already wrote a long and detailed post about the DOJ gagging Google for over four years, preventing it from telling Jacob Appelbaum about the government's §2703(d) Order for his Gmail info (a §2703(d) order is like a subpoena, but with less privacy protections -- which is why the government is a fan). The gag was finally allowed to be lifted on April 1st of this year, despite most of the key moments happening in the early months of 2011. However, as part of the agreement to finally unseal this document, the DOJ apparently required parts of it to be redacted. Perhaps that's understandable, but some of the redactions are so ridiculous as to be laughable -- starting mainly with trying to make sure that every judge and every DOJ employee in the documents is hidden away. Throughout the document, you see examples like this:

Of course, amusingly, sometimes they redact the phone numbers, and sometimes they don't. So I'm sure that's useful.

And, really, what sort of court system do we have when the judges get to have their names redacted:

And, of course, there are plenty of pages like the following:

But the truly hilarious redactions come elsewhere. For example, despite being mentioned throughout the document without redactions, the name "Wikileaks" is redacted when mentioned in the headlines of stories and URLs.

I mean... really. The redactions of those URLs? What's that about? Does anyone honestly think that people can't find those articles? For what it's worth:

And there's an exhibit with the first of those two "tweets" redacted again:

Yeah, that's Wikileaks' Twitter account, which is kinda obvious from the background and all. But here you go:

The second one -- despite the claim in the document -- does not actually appear to be a tweet at all. However, it was stated by another of the individuals who the DOJ targeted with the Twitter Order, Rop Gonggrijp -- not on his Twitter account, but rather in a blog post about being targeted.

They even want Wikipedia redacted. I wish I were joking.

And that one even tries -- but sometimes fails to redact each mention of Wikileaks even in the references and links at the end. I mean, really:

All of this should raise plenty of questions. Beyond just the ridiculousness of the original gag order, it now appears that the DOJ is abusing the redaction process for no good reason at all. In some cases, it's clearly to avoid having any of the DOJ team or the judges criticized publicly -- because what kind of democracy or due process is there if we have transparency. In other cases, it just seems... to be for no reason whatsoever except "because we can." That's not how the judicial system is supposed to work. We have public courts for a reason.

To be honest, as with the spying on leadership of other allies like Germany, I really don't think this is that big of a deal in reality. This is what intelligence services are supposed to be doing: spying on foreign governments. The revelations may make for some awkward diplomatic conversations, but you can bet that pretty much everyone knew this was going on already.

But, where this has the potential to get interesting is in the public perception. If the public gets angry about it, it can create international tensions, or lead to various other issues. But, on the whole, compared to spying on private citizens, it's difficult to get too outraged over spying on other governments -- even those deemed "friendly." You can bet the French are doing everything they can to spy back on the US as well.

from the fanciful-geopolitics dept

The TPP saga is entering a critical phase. After the excitement of the initial rejection of Trade Promotion Authority (TPA -- "fast track") in the Senate, followed by the vote in its favor shortly afterwards, attention is now focused on the House, where the outcome is still in doubt. Meanwhile, Australian politicians have finally been granted access to the negotiating text -- but under humiliating conditions, as The Guardian reports:

They were told they could view the current TPP negotiating text on Tuesday "subject to certain confidentiality requirements" and were shown a document they would be required to sign before any viewing.

I will not divulge any of the text or information obtained in the briefing to any party.

I will not copy, transcribe or remove the negotiating text.

The following condition is interesting:

I therefore agree that these confidentiality requirements shall apply for four years after entry into force of the TPP, or if no agreement enters into force, for four years after the last round of negotiations.

This confirms what Techdirt wrote back in 2011: that aside from the final agreement, all the other negotiating texts will be kept secret for four years after the conclusion of the talks. And yet, bad as the Australian deal is, it's more than the public gets when it comes to accessing the text being negotiated in its name. Fortunately, we have WikiLeaks, which has already published three chapters of TPP, and now hopes to leak the rest:

Today WikiLeaks has launched a campaign to crowd-source a $100,000 reward for America’s Most Wanted Secret: the Trans-Pacific Partnership Agreement (TPP).

The most influential, by Peter Petri, Michael Plummer and Fan Zhai, for the East-West Centre, a research institute, forecasts that the deal would raise the GDP of the 12 signatories by $285 billion, or 0.9%, by 2025. It is their numbers that America's government cites when it says TPP will make the country $77 billion richer.

But other researchers predict far more modest gains from TPP:

[The researchers Ciuriak and Xiao] calculate that TPP will raise the GDP of the 12 countries by just $74 billion by 2035, a mere 0.21% higher than baseline forecasts. Others see an even smaller impact. In a paper for the Asian Development Bank Institute, Inkyo Cheong forecasts that America's GDP will be entirely unchanged by TPP.

Given those small, perhaps non-existent, economic benefits, it's perhaps not surprising that US proponents of TPP have shifted their emphasis, claiming that TPP is not so much about economics, as about geopolitical influence -- President Obama's famous "pivot to Asia." A perceptive analysis in the Boston Globe explains why that makes no sense:

The administration's geopolitical case for TPP is fanciful. In the real world, there is no way that new rules for trans-Pacific trade, written without regard to China and without Chinese participation, will somehow pivot the United States into a lasting position of supremacy in China’s backyard.

Four basic facts explain why that is so: First, China is now everybody's biggest trading partner, including America's prospective partners in TPP. Second, the Chinese market represents the major growth opportunity for all these nations.

Third, whatever their concerns about China's increasing military power, Asian leaders have no interest in distancing themselves economically from China -- or from the supply chains that converge there. Fourth, most economists expect China's economic growth will continue to be much faster than that of the United States.

That means that as well as offering the US marginal economic benefits at best, TPP might also damage its chances of engaging meaningfully with China. Sadly, it's probably too much to hope that US politicians will pay much attention to either point once the next round of Congressional haggling over TPA starts again.

from the not-dead-yet dept

Compared to its early days, when releases of material like Collateral Murder dominated public discourse for weeks, Wikileaks is now only a shadow of its former self, eclipsed largely by Snowden's leaks. That's understandable, perhaps: Julian Assange has been holed up in the Ecuadorian Embassy in London for nearly three years, and it has been hard for the organization to raise funds to pay Wikileaks' running costs. However, that reduced visibility and activity doesn't mean it's not still releasing valuable material, particularly in the area of trade agreements. Today, it has published another interesting set of documents, this time from the field of surveillance:

WikiLeaks releases ten months of transcripts from the ongoing German Parliamentary inquiry into NSA activities in Germany. Despite many sessions being technically public, in practice public understanding has been compromised as transcripts have been withheld, recording devices banned and reporters intrusively watched by police.

WikiLeaks is releasing 1,380 pages of transcripts from the unclassified sessions, covering 34 witnesses – including 13 concealed witnesses from Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND). The transcripts cover from the start of the inquiry in May 2014 through to February 2015.

WikiLeaks has also written summaries of each session in German and English as the inquiry, due to its subject matter, is of international significance.

This underlines an important aspect of Wikileaks' work: the fact that it seeks to make the documents it releases useful by providing commentary, summaries and indexes. Those valuable additions are often overlooked, but can play a crucial role in helping people understand the raw material provided.

The German parliamentary inquiry has been rumbling on for a year now, but has gained renewed importance with the recent revelations that the German spy service, the BND, has been searching through its databases using "selectors" (keywords) provided by the NSA, with apparently no oversight. Not only were many of the targets for those selectors EU citizens, but they included senior politicians and industry figures, too. Here's Wikileaks' summary:

One of the biggest scandals to emerge from the inquiry so far is the recent "selector" spy target list scandal where a BND official revealed that the agency was expected to spy on thousands of targets at the instruction of the NSA. These targets included members of the French government and European industry. This put into question Germany's suitability in taking a leadership role in the European Union. It also showed that international co-operation on mass surveillance, which has been marketed in public as a counter-terrorism measure, is in practice also used by the United States for the purposes of industrial espionage and geopolitical advantage vis-a-vis members of the European Union. The committee requested the full "selector" list of targets provided to the BND by the NSA. The committee was told that the US would first need to be asked permission for the list to be revealed to the committee (even in confidence). Last Wednesday, 6 May 2015, when the answer was meant to be delivered, stalling tactics were used, leaving the German public, and the Parliamentary inquiry, without any ability to understand what their own secret services are up to.

The "selector" scandal has now reached the highest political echelons in Germany, with Angela Merkel's earlier outrage over NSA spying -- not least against herself -- looking hypocritical at best, or dangerously naive at worst. Wikileaks' latest release therefore comes at just the right moment for those seeking to understand what has been going on in Germany. It's also a timely reminder that Wikileaks is still able to perform an important service in this respect, despite its straitened circumstances.

from the freedom-of-the-press? dept

The DOJ's war on investigative journalism keeps on going. In 2013, it came out that the DOJ was able to get massive phone records of AP journalists in trying to find the source of a leak. Soon after that, it obtained Fox News reporter James Rosen's emails by lying to a court and saying he was a co-conspirator with a State Department official who leaked him some information. And, now the latest example, is that it's come out that the feds demanded and received emails and other information from three Wikileaks staffers who had Google Gmail accounts. And, because this is what the government does, with the orders for that information, Google was slapped with a gag order that prevented the company from informing those staffers.

It's no secret that the DOJ has been desperate for years to come up with some way -- any way -- to try to charge Julian Assange with crimes under the Espionage Act. However, to date, this has failed. Attempts to pressure Chelsea Manning into lying about deeper involvement from Wikileaks failed, and that should have been the end of any investigation. But years later, the "investigation" continues for no clear reason. If the DOJ has been unable to find any evidence of criminal violations so many years later, it should end the investigation.

Instead, it's spying on journalists' emails, using a combination of the outdated ECPA (Electronic Communications Privacy Act) and the Espionage Act to demand a very broad set of information from Google concerning those three staffers. Of course, the DOJ and Wikileaks haters will counter that Wikileaks isn't a journalistic operation, but that is hard to square with reality. You would have a very difficult time coming up with a legitimate distinction for how what Wikileaks does is any different than what the NY Times or Washington Post investigative reporters do on a regular basis. Getting leaked documents is part of investigative reporting. Cultivating sources is part of investigative reporting (and that likely happens a lot more often with traditional reporters than operations like Wikileaks).

Trevor Timm has an article highlighting how these warrants to seize Wikileaks' staffers' emails is an outright attack on journalism, even as many traditional journalism operations refuse to speak out against the treatment of Wikileaks:

Unfortunately the news world has never rallied around WikiLeaks’ First Amendment rights they way they should – sometimes even refusingto acknowledge they are a journalism organization, perhaps because they dare to do things a little differently than the mainstream media, or because WikiLeaks tweets provocative political opinions, or because they think its founder, Julian Assange, is an unsympathetic figure.

Those are all disgraceful excuses to ignore the government’s overreach: the rights of news organizations everywhere are under just as much threat whether the government reads the private emails of staffers at WikiLeaks, Fox News or the Associated Press. In the eyes of the law, the organizations are virtually indistinguishable, as legal scholars from across thepolitical spectrum have documented for years.

Isn't it about time "we don't like those people" stopped being an acceptable excuse for spying on people? Wasn't our Constitution supposed to prevent that kind of abuse?

from the file-charges-or-drop-it dept

For many years, it's been widely known, if not officially confirmed, that the DOJ had a grand jury investigation going on against Julian Assange and Wikileaks. As far back as early 2011, it was already quite clear that they didn't have enough evidence to actually make a case against him. They were so desperate that they tortured Chelsea Manning and offered her a plea deal if she would lie, and claim, falsely, that Assange "conspired" with her. Last fall, we noted that some in the DOJ were finally admitting that they had no case, but as of the end of April, the investigation was still happening.

A very long list of human rights and press freedom groups have now sent a letter to Attorney General Eric Holder, asking him to end the criminal investigation and admit that nothing criminal was done by Assange or Wikileaks in relation to publishing classified information leaked to it by Manning (and, potentially, others).

In a recent meeting with media representatives, you promised that “as long as I am attorney general, no
reporter who is doing his job is going to go to jail.” Yet, the continued criminal investigation and other
persecution of WikiLeaks and Mr. Assange puts them at serious risk. Well-respected legal scholars across
the political spectrum have stated that a prosecution of WikiLeaks or Mr. Assange for publishing
classified material or interacting with sources could criminalize the newsgathering process and put all
editors and journalists at risk of prosecution.

There is growing international recognition that new media organisations are creating new channels for
political debate and play a crucial role in maintaining transparency and democratic forms of government.
The US Government made freedom of expression on the Internet one of the priorities of its foreign policy;
this commitment must not be limited to the international arena. Thus, we are concerned that actions
against Wikileaks undermine the commitment of the US Government to freedom of speech

It's doubtful that this will do any good, but it's important to keep highlighting issues like this, and how the administration has failed, badly, to live up to its promises. Unfortunately, rather than actually doing the right thing, all too often, the administration seems to decide to double down on its strategy.

from the leaked-birth-certificate-confirms! dept

One of the great unwritten rules of parenthood is that the right to name your offspring should be treated as a privilege. The temptation is to give the child a "unique" name that sets him or her as far apart for his/her eventual peers as humanly possible, thus living up to the common parental delusion that each child is its own special flower, unlike the millions born before it or after it.

Unfortunately, a "unique" name is often just an unwieldy name, if not simply embarrassing. And the unlucky child has to bear that clumsy moniker until he or she hits the legal paperwork-filing age and changes it to something that won't trigger an inadvertent laugh from college staff and potential employers. The intervening years will pass excruciatingly slowly as the child awkwardly orbits his peers like a gatecrasher at a menage a trois, trying desperately to find somewhere to fit in. This is generally made worse by the "unique" parents, who somehow view intense shunning as more "evidence" of their child's one-in-a-million qualities.

Hajar Hamalaw wanted to name his son, who was born on March 14th, after the online whistleblowing platform as it “changed the world”, the Passauer Neue Presse reported.

But the 28-year-old failed to get the name past authorities in Passau, Bavaria.

Hamalaw's heart is in the right place, at least in terms of having a decent reason to name his new child "Wikileaks." But first he had to convince local officials, which went just about as well as could be expected from any place where newborns' names get run past local officials.

But Wikileaks did not make it onto the birth certificate. "The registrar said that this was not a first name. He thought it was a series or TV show," said Hamalaw.

Beyond the out-of-touch registrar, there's another rule on the books that keeps Passau parents from saddling their offspring with ridiculous names.

A spokesperson for the town of Passau said the decision by the registry office was based on legal rulings which state a child’s name should not be granted if it could endanger their welfare.

I don't agree that any government entity should keep you from naming your child whatever you want, but if you're going to have a stupid rule like this, at least have one that looks out for the child's best interests. When "Dako" (the "Plan B" name, apparently) hits legal age, he'll have the option to change his name to "Wikileaks" or "Full Metal Havok More Sexy N Intelligent Than Spock And All The Superheroes Combined With Frostnova" if he'd like and no one, not even a person who thinks "Wikileaks" went downhill after its third season, will be able to stop him. But until then, he's got several years of pre- and post-pubescent awkwardness to live through that will have nothing at all to do with his father's love for leaked documents.

The additional slides give some insight as to who the NSA believes is a worthy target.

The efforts – detailed in documents provided previously by NSA whistleblower Edward Snowden – included a broad campaign of international pressure aimed not only at WikiLeaks founder Julian Assange, but at what the U.S. government calls “the human network that supports WikiLeaks.” The documents also contain internal discussions about targeting the file-sharing site Pirate Bay and hacktivist collectives such as Anonymous...

Illustrating how far afield the NSA deviates from its self-proclaimed focus on terrorism and national security, the documents reveal that the agency considered using its sweeping surveillance system against Pirate Bay, which has been accused of facilitating copyright violations. The agency also approved surveillance of the foreign “branches” of hacktivist groups, mentioning Anonymous by name.

While some concern is expressed by NSA guidance that US citizens' data will be caught in this program's nets, the general response seems to be, "report it," but otherwise "it's nothing to worry about." What's worse, however, is how simple it is for the NSA to flip the switch on total surveillance (including US persons) while still remaining in the clear, legally-speaking.

A third document, from July 2011, contains a summary of an internal discussion in which officials from two NSA offices – including the agency’s general counsel and an arm of its Threat Operations Center – considered designating WikiLeaks as “a ‘malicious foreign actor’ for the purpose of targeting.” Such a designation would have allowed the group to be targeted with extensive electronic surveillance – without the need to exclude U.S. persons from the surveillance searches.

This designation itself is relatively meaningless, needing only a 51% "confidence" (whatever that means) to be able to search "without defeats" (minimization). This low bar puts the designation on par with other tools deployed frequently by intelligence and investigative agencies, like NSLs (national security letters) and administrative subpoenas.

So, simply visiting any of the sites listed could result in your data being swept up "inadvertently." This will probably be noted on the OGC's report, but otherwise it just seems to be considered unavoidable collateral damage. Anything on those reports isn't considered to be abuse because of the lack of intent. The document seems very clear that intentionally targeting US persons or US-to-US communications is forbidden (and indeed the latter will return "no results"), but the inadvertent collection is still a concern, especially when the only obstacle can easily be removed by calling TPB, Wikileaks and others "malicious foreign actors."

How targeting these sites (and their users) fights terrorism is completely unclear. The TPB may post a link to "stolen documents" but it's not the host (unless the NSA has also been tasked with playing copyright cop). As for Wikileaks, the "stolen documents" discussed in the internal wiki have been public for years without creating anything more serious than diplomatic embarrassment.

This does, however, seem to fall in line with the law enforcement and intelligence agencies' increasing tendency to portray "dissent" as "terrorism" when the only similarity between the two is an antipathy towards those in power.

from the that-took-years-too-long dept

For years the Justice Department has been working with a grand jury to try to find something... anything... to charge Julian Assange with a crime for releasing the State Department cables apparently received from Chelsea Manning. The whole case against Manning was more of an attempt to find something with which to go after Assange. Nearly three years ago we wrote about how investigators kept trying to link Assange to Manning, because to prove there was a crime, they needed to show that Assange did a lot more than just receive and publish the documents. Investigators and Wikileaks haters kept insisting that Assange must have been the mastermind who encourage Manning to do the leak, but the evidence turned up nothing. The DOJ even offered Manning a plea deal if he would effectively lie and implicate Assange, saying they "conspired." Manning, despite being tortured refused to cooperate.

Three more years have passed since then and the DOJ seems to finally be coming to terms with the fact that Assange didn't break the law and there's nothing they can charge him with, even under their ridiculously broad interpretations of the Espionage Act. It seems that the DOJ has finally realized what many of us said from the very beginning: if you charge Assange, by default, you're saying that journalists can be charged with reporting on leaked documents:

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian, according to the officials, who spoke on condition of anonymity to discuss internal deliberations.

Still, somewhere in the range of four years has been totally wasted on this effort, which was defined by its singular mission to get Assange at all costs. I'm almost surprised that enough people within the DOJ have realized that "NY Times problem," because we've seen more than a few defenders of the surveillance state twist themselves into all sorts of contortions to pretend that Wikileaks is different from the NY Times in a way that makes one operation journalistic and the other, not. So, while I'm disappointed that a ton of taxpayer money must have been spent on this years-long wild goose chase, I'm at least happy that they didn't feel the need to bring charges just to "show something."

Of course, nothing official has been stated -- and the DOJ might never actually make any public statement on this. The folks associated with Wikileaks are (understandably) skeptical about whether or not the US is really dropping the issue, and say that they won't trust the US government until an official statement is made (even then, I imagine they'd be fairly cautious). So, you can take some of this with whatever sized grain of salt you prefer. However, at least for now, it appears that the US will avoid trying to put on a show trial of Assange.

The document confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards.

Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.

Although many areas are touched by the draft's proposals -- access to life-saving medicines would be curtailed, while the scope of patents would be extended to include surgical methods, for example -- the effects on copyright are particularly significant and troubling:

Collectively, the copyright provisions [in TPP] are designed to extend copyright terms beyond the life plus 50 years found in the Berne Convention, create new exclusive rights, and provide fairly specific instructions as to how copyright is to be managed in the digital environment.

Here are some of the term extensions being proposed:

For the TPP copyright terms, the basics are as follows. The US, Australia, Peru, Singapore and Chile propose a term of life plus 70 years for natural persons. For corporate owned works, the US proposes 95 years exclusive rights, while Australia, Peru, Singapore and Chile propose 70 years for corporate owned works. Mexico wants life plus 100 years for natural persons and 75 years for corporate owned works. For unpublished works, the US wants a term of 120 years.

A more technical issue concerns the use of the "3-step test" to act as a further constraint on possible exceptions to copyright:

In its current form, the TPP space for exceptions is less robust than the space provided in the 2012 WIPO Beijing treaty or the 2013 WIPO Marrakesh treaty, and far worse than the TRIPS Agreement. While this involves complex legal issues, the policy ramifications are fairly straightforward. Should governments have a restrictive standard to judge the space available to fashion exceptions for education, quotations, public affairs, news of the day and the several other "particular" exceptions in the Berne Convention, and more generally, why would any government want to give up its general authority to consider fashioning new exceptions, or to control abuses by right holders?

That's a good example of how TPP is not just trying to change copyright in favor of the maximalists, but also to rig the entire process in favor of strengthening it in the future. Here's another one, where TPP wants to stop any return to copyright systems that require registration -- something that has been suggested as a way of solving some of the problems that arise because of copyright's automatic nature:

The TPP goes beyond the TRIPS agreement in terms of prohibiting the use of formalities for copyright. While the issue of formalities may seem like a settled issue, there is a fair amount of flexibility that will be eliminated by the TPP. At present, it is possible to have requirements for formalities for domestically owned works, and to impose formalities on many types of related rights, including those protected under the Rome Convention. In recent years, copyright policy makers and scholars have begun to reconsider the benefits of the registration of works and other formalities, particularly in light of the extended terms of copyright the massive orphan works problems.

As you would expect, TPP wants strong protection for DRM; but even here, it manages to make things worse than they are:

The copyright section also includes extensive language on technical protection measures, and in particular, the creation of a separate cause of action for breaking technical protection measures. The US wants this separate cause of action to extend even to cases where there is no copyrighted works, such as in cases of public domain materials, or data not protected by copyright.

This would make it illegal to circumvent DRM even if it has been applied to materials that are in the public domain -- effectively, enclosing them once more. Finally, it's worth noting that under the section laying down damages for copyright infringement we read the following:

In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

It's exactly the phrasing that was used in ACTA, and which turned up in the recent free trade agreement between the EU and Singapore. That encapsulates well how TPP builds on ACTA directly, while the other measures discussed above show how it goes well beyond it in many respects.

That's the bad news. The good news is that we now have a very recent draft of what is perhaps the most contentious section of the agreement. In the weeks to come, we're likely to see many detailed analyses exposing just how pernicious this proposed deal will be for the public in the negotiating countries. The hope has to be that once they find out, they will make their feelings known to their political representatives as they did with SOPA and ACTA -- and with the same final result.